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Understanding Trade Dress Protection


You probably already know that distinctive slogans, words or phrases that are associated with your business, can be trademarked; you can protect your mark, and make sure nobody else uses it, thus ensuring that the general public doesn’t confuse your business with someone else’s.

But you can trademark more than just a word, slogan or phrase. You actually can trademark less tangible things like looks, designs, or layouts.

Trade Dress in Real Life

You probably see these things every day. Just the look of, say, Target, would let you know its Target. Publix looks like a Publix and Fresh Market supermarkets all have distinctive looks, from the flooring to the size and shape of the shelves to the color schemes. There are no words or pictures. It’s just a look that you associate with a product, store or location.

Even shapes can relate to a product; you probably know the unique design of a Gatorade or Starbucks bottle or container, even if that container had no label on it.

Trade Dress Protections

These identifiable characteristics give rise to what is known as trade dress protection. Trade dress protection can’t have a use or function. It must simply be arbitrary, but related to your business.

So, for example, the angular, lower, wooden aisles inside of a Fresh Market don’t need to be that way, they serve no particular purpose—they are just there because that is Fresh Market’s design or layout, identifiable with that company or store.

Like many forms of IP, the trade dress must have a distinctiveness to it. Apple’s clean, white packaging on all of its products are unique-they aren’t just boxes. People have come to identify clean, white, square-ish boxes with Apple products, thus giving rise to trade dress protection.

A hotel lobby is just a lobby, with no protection, but adorn the lobby with pink window shades, neon couches, and 20s style decoration, and you may be distinctive enough to warrant trade dress protection.

Even the way that a store displays items, or the pattern of a display can get trade dress protection, if it is distinctive and identifiable enough.

Distinctiveness and Confusion

None of these characteristics are distinctive on their own. They get trade dress protection through their secondary meaning or association with products or brands.

Can you get trade dress protection? The answer comes down to confusion. Ask whether, if someone else used your design, packaging, or layout, would they know it was yours? If someone else used any of those things would a consumer mistakenly think it was yours?

If you walked into an all white store with phones lined up on midsized tables, with accessories in the back, and employees with colored shirts, you’d think you were in an Apple store—if that was a Microsoft store, you would be pretty surprised and confused. That (potential) confusion tells you there may be trade dress protection.

Questions about intellectual property? Call the West Palm Beach business litigation lawyers at Pike & Lustig today for help.




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